Adam Gershowitz and Laura Killinger rightly explore an
important problem that prosecutors face: they are spread too thin trying to
prosecute too many cases. Their thoughtful, well-written article is an
important contribution to the field and usefully complements the burgeoning
literature on the underfunding of criminal defense. As they argue,
prosecutorial overwork harms justice in any number of ways. It delays cases,
frustrates victims, makes it harder to spot and free innocent defendants, and
impedes lowering punishments for sympathetic defendants.[1]

The root problem, however, is not so much a matter of underfunding
of prosecutors' offices as it is a matter of skewed priorities and metrics of
success. Prosecutors need not pursue every legally supportable charge. They
enjoy discretion in deciding which cases to pursue, which charges to file, and
which pleas to offer and accept. Though they have that discretionary power,
too often they do not think strategically about using it. Indeed, individual
prosecutors often reactively prosecute the cases that come before them, instead
of proactively setting priorities and focusing on system-wide tradeoffs. Many
offices lack hierarchies or office policies that meaningfully direct line
prosecutors' efforts. The problem, evinced by the framing of Gershowitz and
Killinger' s article, is that prosecutors and the public measure prosecutorial
success mostly in terms of the number of cases filed and convictions won.
Throwing money at this problem would only pour fuel on the fire, encouraging
prosecutors to widen their nets in the inexhaustible sea of potential cases.

A surer solution is to refocus prosecutors' efforts to
make the best use of inevitably limited money. For instance, as Gershowitz and
Killinger rightly point out, prosecutors pay too little attention to victims
and communities, failing to solicit their input and take them seriously.[2] We must move from
worshipping quantity to prizing quality. Prosecutors need to focus not just on
what to do but also how to do it: fairly, respectfully, and effectively.

America' s criminal-justice politics are indeed
pathological, as the late Bill Stuntz famously argued.[3] Legislatures
collude with prosecutors to create new, broad, and overlapping crimes, which
gives prosecutors a menu of charging options for a wide array of old and new
offenses. Thus, expansive criminal-justice legislation leads to the familiar
complaint of overcriminalization.

In a world of overcriminalization, limited budgets are not
all bad. The silver lining is that prosecutors cannot possibly pursue all of
the new crimes that their legislative allies have created. Resource
constraints and scarcity can force prosecutors to rank priorities, mitigating
in practice the problem of overcriminalization on the books. Limited funds
thus are not a bug but a design feature: they check prosecutors from
prosecuting the entire universe of people who are technically guilty of
something but do not especially deserve conviction and full punishment. The
value of pursuing crimes is a declining curve, and at some point the costs of
extra enforcement will exceed the benefits. One cannot know a priori what the
optimal level of funding is—that requires much finer-grained data about what
crimes prosecutors would pursue if given more money. It seems plausible that
budgets are too tight in many places. But the optimal funding level is much
less than would be required to try every single alleged crime. That is
particularly true because an extra dollar spent on criminal justice is a dollar
less for other programs. At some point, criminal justice' s bottomless appetite
must give way to other needs.

More generally, overall percentages and statistics alone
do not tell the full story. Gershowitz and Killinger repeatedly mention
violent crimes, correctly implying that some kinds of cases count more than
others.[4]
But statistics, even Gershowitz and Killinger's own statistics, often lump
cases together.[5]
Prosecutors rightly feel pressure to prosecute most of the crimes listed on the
FBI' s index (murder, rape, robbery, burglary, arson, aggravated assault,
larceny, and auto theft). But they also pursue a wide range of narcotics cases
that cause varying degrees of harm. Street-corner and crack-house drug sales,
for example, often blight neighborhoods with violence and signs of decay, as do
the smuggling and distribution that precede them. In contrast, discreet sales
may have fewer harmful effects. One could draw the same contrast between
street-corner prostitution and internet escort services. Yet prosecution and
conviction statistics mask whether we are using our drug-enforcement dollars
wisely, as we would by focusing primarily on the former cases but not the
latter. Community input, and not arrest statistics alone, ought to shape these
decisions. Similarly, we would not want to live in a police state that
inexorably enforced every law against speeding, jaywalking, littering, false
statements, and the like.

Even for crimes that manifestly should be prosecuted, much
more matters than the mere fact of prosecution. Gershowitz and Killinger
rightly point out that underfunding not only leads to delays and overcrowding,
but also impedes sorting the worst defendants for the worst punishment, turning
over exculpatory evidence, and working with victims.[6] Again, all of
these costs are hidden by quantitative metrics of success. Gershowitz and
Killinger begin the process of bringing them to light, but we need a much
better empirical handle on the severity of these problems.

The difficulty seems to be a variation on the old joke about
the drunk who dropped his keys by the front door but looked for them over by
the lamppost because that is where the light was the best. Prosecutors and
voters focus on a handful of quantifiable, objective metrics, such as the
number of prosecutions and convictions, and imagine each of these cases as some
hypothetical violent or serious crime. As Josh Bowers' s response points out,
however, the more typical and numerous cases are low-level misdemeanors, such
as quality-of-life offenses.[7]
Now, prosecutors cannot simply stop prosecuting all misdemeanors; these charges
help to keep our neighborhoods safe, orderly, and clean. But neither do they
need to prosecute each one to the hilt simply because there is enough evidence
to do so. The charge may be easy to file and the conviction easy to obtain,
yet prosecutors can lighten their own workloads by proactively differentiating
within this category of cases. Is the offender a known recidivist? Is there a
better way to stop the public drunkenness, urination, or littering—say, by
trying Alcoholics Anonymous before jail? Or, conversely, was this offender
behaving in a violent or belligerent manner, such that tougher-than-usual
treatment is fitting?

Gershowitz and Killinger' s article is written from the
perspective of the overburdened line prosecutor who is up to his eyeballs in
cases. But scholars should broaden their field of vision to take in a synoptic
perspective. First, supervisory prosecutors matter a great deal, even though
Gershowitz and Killinger discount their importance because they do not carry
large caseloads of their own. Supervisors are in the best position to compare
office priorities and workloads and to adjust intake, screening, deferral,
diversion, and dismissal policies to ease workloads. As Ronald Wright and Marc
Miller have shown, by carefully screening out weak cases at intake, supervisors
can reduce the pressure to plea bargain at all costs.[8] Prosecutorial
screening also forces police to prepare by doing better up-front investigation
and sorting of cases before bringing them, which should disproportionately
protect possibly innocent defendants facing weak evidence.

Second, supervisors should calibrate their policies and
priorities to the views of their office' s constituencies: namely, the local
residents who elect district attorneys and need to cooperate with their
offices. The community-prosecution movement promised to do this, but it has
largely failed to deliver the goods. Neighborhood residents can help police
and prosecutors focus on crimes that cause substantial harm and sow fear, in
addition to identifying the range of productive responses to them. The media
can better publicize the kinds of crimes prosecutors are targeting and the
alternative programs, such as deferred prosecution, diversion for drug
treatment, and restitution, that are available for less serious offenses.

Third, Gershowitz and Killinger are absolutely right to
lament how excessive caseloads harm victims by speeding up individual cases
without keeping them abreast and letting them speak their piece.[9] As I argue
elsewhere, victims ought to be much more central to criminal justice, as they are
most directly injured and thus have concrete stakes in both substantive
outcomes and procedures. Having been demeaned by crimes, victims deserve more
empowerment in criminal justice, which includes plenty of notice and
opportunities to voice their views.[10]
Victims do not automatically demand the heaviest sentences, and if the system
treats them respectfully, they may gladly agree to alternative dispositions for
more minor crimes, instead of traditional prosecutions to the hilt. Victim
input can also help prosecutors see the specific injuries inflicted and dangers
posed by each defendant. This will discourage prosecutors from lumping all
defendants together. Some defendants need to have the book thrown at them, and
victims can help prosecutors figure out which deserve more attention and more
punishment.

Unfortunately, simply throwing money at prosecutors'
offices would not effect these changes. It would instead encourage prosecutors
to do more of the same, as long as they continue to view their main job as
maximizing case processing. Line prosecutors would proceed on auto-pilot,
prosecuting larger quantities of cases without doing much more to include
victims and community input. Instead of trying to squeeze drops of efficiency
out of the system—doing more with less—we need to rethink what we are doing and
why. Our criminal justice system has become a plea-bargaining assembly line,
and more money will simply speed up the machinery. Conversely, the current
financial crisis is an opportunity to rethink whether we want to keep paying
for ever-longer sentences for ever-more people, or how well we can
differentiate scary, dangerous, violent felons from the many lower-level
offenders. Indeed, we cannot say a priori that more prosecution is better
prosecution. Prosecutors should measure their success not just in numbers of
prosecutions and convictions, but in victims' and communities' satisfaction and
feelings of safety. Those constituencies may rightly demand some
quality-of-life enforcement, but they can help prosecutors balance the benefits
of enforcement against the substantial costs of prosecution and imprisonment.
Victims may also be satisfied with face-to-face conferences, restitution, and
apologies for more minor offenses, freeing prosecutors to spend time on more
serious cases.

There are many ways to include victims and communities in
prosecution. Face-to-face meetings, as well as eBay-style reputational
feedback surveys of victims and communities, can appraise past performance and
encourage prosecutors to ensure satisfaction in the future. Line prosecutors
could learn how to improve their own performance. Supervisory prosecutors
could use feedback as part of performance evaluations in awarding raises and
promotions, counteracting the bean-counting tendency to focus solely on
convictions and docket size. And the media, as well as challengers to
incumbent district attorneys, could do a better job of making these measures of
satisfaction issues in electoral campaigns.[11]

Although my proposed solutions differ greatly from those
offered by Gershowitz and Killinger, they address the same problem. Their
article is a welcome reminder that criminal justice is about justice, more
broadly conceived, and in many ways our system slights justice as it speeds cases
along its assembly line. Speed kills, or at least it deadens us to the price
we pay and what is going on along the way. I applaud their contribution to
this conversation and hope that policymakers will notice and respond.

————

* Professor of Law and Criminology,
University of Pennsylvania School of Law. Thanks to Adam Gershowitz, Laura
Killinger, Josh Bowers, and the editors of the Northwestern University Law
Review Colloquy for the opportunity to engage in this conversation.